FOR years I have wondered whether “real” anchovies tasted significantly different from those in little tins and glass pots: would they be as different as fresh asparagus is from the tinned sort?

When I spotted a new-look variety of the little fish in Woolworths the other day, larger and white rather than the usual small dark pink, it seemed my chance – short of a holiday in Portugal – to find out.

Then two things happened. When I got home I turned over the packaging and found it was labelled “product of Morocco”. The same afternoon I read a major new opinion by the advocate general of the European Union’s court of justice on a dispute referred by the UK courts. The dispute concerns a fishing contract between Morocco and other EU countries, now under scrutiny because the Western Sahara Campaign, a UK lobby group, claims the contract is unlawful.

The task of an EU advocate general is to consider submissions to the court in all matters that raise a new point of law, and then to write an impartial opinion by way of advising the court on the legal way forward. The judges are not obliged to accept these decisions, though they most often do.

In this case, advocate general Melchoir Wathelet, formerly a judge of the European court of justice, concluded that the fishery agreement between the EU and Morocco was invalid. The dispute is part of a larger fight over self-determination for Western Sahara, occupied by Morocco since the mid-1970s. While Morocco claims the territory as its own, the International Court of Justice held, in 1975, that the evidence had not established “any tie of territorial sovereignty” between Western Sahara and Morocco.
Just last year, South Africa was drawn into this continuing international argument when a ship loaded with phosphate, mined in Western Sahara by a government-owned Moroccan company, stopped here. The Saharawi Arab Democratic Republic (Western Sahara) won an order for the cargo to stay in South Africa while the issue of ownership of the phosphate is sorted out.

At the time, officials of the Moroccan mining company were scathing about the decisions of the local courts that the cargo should stay in South Africa, but the opinion of the advocate general in the fishing case is even stronger in finding that Morocco has acted unlawfully. And the UK judges who referred the dispute to the EU court consider that even though Morocco claims Western Sahara as part of its sovereign territory, this “continued occupation” by Morocco amounts to an unlawful occupation by another state.

The estimated annual value of the disputed fishing contract was EUR40-million, to be paid to the Moroccan treasurer-general, with the Moroccan authorities having full discretion as to how the funds would be used. But virtually all the fish – more than 90 percent – were to be caught in the waters off Western Sahara. In other words, the natural resources of that territory were being economically developed and disposed of by Morocco.

EU decisions had to respect human rights in order to be lawful, Wathelet pointed out. But the situation in Western Sahara has been recognized as a grave breach of the rights of the people of that territory and Morocco’s occupation was not lawful. The EU was thus not entitled to have contracted with Morocco to use the resources of Western Sahara and the fishing agreement was invalid.

Wathelet’s conclusion will now be considered along with other documentation by the court itself in deciding the fishing contract dispute.

That decision isn’t expected any time soon, certainly long after the sell-by date of the anchovies. To me, though, Wathelet’s opinion is so persuasive that the anchovies will have to be returned, along with a copy of that opinion to explain why.

(Difficult to download the entire judgment, but read the press release below and then take a look at the full judgment on the court’s site, highlighted in the press release)